Overview
Accidents usually just happen out of the blue, whether it be an accident at work, on the roads either as a driver or pedestrian, or even playing sport. The consequences can be devastating both for the victim and their families. But it can be difficult to know whether you have a claim for compensation and how to go about it. In this episode Austin outlines the various types of accidents, and the responsibility employers have to keep employees and the public safe. As well as at work or on the roads, other accidents may involve a pedestrian being struck by an object, a motorist hitting a pothole or even a shopper slipping in the supermarket. Negligence is discussed and whether it could have played a part and Austin explains how there can often be a criminal and civil case running alongside each other. He discusses the types of compensation including Solatium, loss of earnings and future loss of earnings, and how they are calculated.
He highlights the importance of gathering evidence for a claim which usually should be submitted within 3 years and how long claims are expected to take, especially if the case goes to court. Costs are discussed and the ‘no win no fee’ scenario.
Austin advises having good travel insurance when thinking about accidents abroad and the importance of disclosing any medical conditions both for travel insurance as well as car insurance. The uninsured driver situation is also flagged.
Finally, Austin talks about what to do if you’ve ever had an accident in a beauty salon or in the hairdressers and how you can never sign away your right not to be harmed.
Meet the contributors
Austin Lafferty
Consultant Solicitor
Austin is married and has two adult children – one of whom is a solicitor in London. He has run many road races including several marathons, the most recent being London 2015, and has raised tens of thousands of pounds for various charities. His main sport is karate – he is now a fourth Dan black belt. Austin has also worked for many years as a professional artist, specialising in drawn and painted portraits – both human and animal!
Angela Roberts
Producer & Host
Before becoming a freelance producer, Angela has had a long and varied career at the BBC – first as a radio producer on live topical phone in shows on BBC Radio Scotland and Radio 5 Live where she met and worked with Austin, before producing radio features for BBC Radio Scotland and Radio 4. She then moved to Digital Learning at BBC Scotland working on campaigns such as A History of the World in 100 Objects, Commonwealth Class and BBC News School Report. She led Authors Live, a partnership project with Scottish Book Trust, producing live TV events on iplayer featuring children’s authors. Angela recently spent 6 months as senior content producer on daytime programmes on BBC Radio Scotland, working on the morning's phone-in programmes and entertainment in the afternoons with presenters including Stephen Jardine and Michelle McManus.
Transcript
Angela: Hello, and welcome again to It's The Law with me, Angela Roberts, and solicitor Austin Lafferty. Hi, Austin.
Austin Hi, Angela.
Angela: Now, as the song goes, if you remember it, accidents will happen. They're an everyday part of life, whether it be on the roads or at work, or even on holiday or playing sport. But the fallout can be devastating, and it's not just ongoing health issues.
It's the subsequent financial losses. Perhaps you can't work, or your spouse or child has ongoing medical needs. That's when you need to think about whether you have a claim, and that's an area we're going to explore today.
Austin, there was a case recently about UK athletics, I think it was, being fined a huge amount of money when equipment fell at a training ground and caused the death of a Paralympian. And that might seem rare, but accidents at work or on the roads are common. How do know when you might have a claim?
Austin: Well, the history of accidents at work and machinery is a sad one, but it's a very, very long one and very detailed. Basically, wherever you set up equipment or physical items stacked up vertically, there is the chance of an accident. The law has developed over many years and it's well settled now, that there is an obligation on the part of, let's talk about at work employers, although this applies if you go into the shops or supermarket or somebody's office to consult them.In fact, let's just open it out. Occupiers, as they're called, who are either the tenants or owners of buildings that are operating within them, and bringing in the general public or employees, they've all got an overwhelming liability and responsibility to make the place and keep the place safe. Now, environmental health and health and safety get a bit of a bad rap.
They talk about health and safety gone mad. Health and safety, by and large, doesn't go mad. It is utterly essential.
Talk about the equipment falling on the athlete. That is somebody's fault. Somebody has been negligent either in the way that the area was set up, the planning of it, the direction from management and put this there and stack that up there.
Or else, it's somebody who has been carrying out the work in stacking things up or arranging things or putting things in place, who has made a mistake of judgment. They've been careless, they've been negligent. And negligent is a word that you and I will be using throughout this discussion again and again."
You may say, well, if it's just some bod, they've brought in to do a day's work as a freelancer, stacking up stuff, then it's that person's liability, not the management. And the law, again, well settled is not that. The law is that what they call vicarious liability applies.
And vicarious liability, it's got the word vicar in it. I'm never quite sure where that's ever come from. But it means that whoever is in a final charge of the operation, and therefore instructing the employees, the agents, the workers, even if the employees, agents or workers make the mistake, the liability, so the claim for compensation goes on the bosses, the employers.
Angela: Yeah, I think that it wasn't just a huge fine. I think someone also got some sort of penalty as well, or had to do community service or something like that.
Austin: Well, yes. And actually that's a really good point. There are different kinds of liability.
There is criminal liability, and our health and safety legislation in this country is very exacting. The responsibility on companies or individuals can be high, and it can be a combination of a kind of corporate thing, where the company gets fined for breaching health and safety laws, criminal laws, that they're in court and they're convicted and fined. But if individuals have acted in a way that is in personal breach of these laws, they can be sanctioned as well, and there can be penalties such as individual fines, compensation orders, or indeed the jail if it comes to it.
But the other side of that coin, that's the criminal world. But the other side of the coin is the civil liability. And running alongside that criminal regime, if somebody has been affected, injured, has suffered as a result of failures in health and safety, it may also be a failure in the civil courts.
And therefore, as well as those criminal penalties of company fines and so forth, the company or its insurer, and again, let's come back to insurers in a minute, may have to pay compensation to the sufferer or to their family if, God forbid, they've died as a result of the accident. And that compensation can be loss of earnings in the future.
It can be what we call solatium, which is a general payment for suffering.
So if somebody breaches health and safety, or just runs a badly organized workplace so that people are in danger, then they can be made to pay all sorts of penalties, both criminal and civil.
Angela: Yeah, I do remember having to do risk assessments in my former role. So we've looked slightly at accidents at work. But then there's also road traffic accidents.
If it's an accident though, when would you have a claim?
Austin: Well, again, let's come back to negligence. And you know the phrase careless driving. And again, if somebody has been in an accident and really has caused it, then they may be guilty in the criminal courts of road traffic offences, such as careless driving or even dangerous driving, reckless driving, or causing death by dangerous driving, which is a horrific thing.
But also liable in civil law for compensation. Now, the tests are slightly different, criminal and civil. In criminal, it's beyond reasonable doubt.
We'll literally park that to one side and stick with the civil. Because it's very important that people going about their daily business on the roads, either as drivers, passengers, or pedestrians, have some idea of what the legal issues are arising. If you are a pedestrian and you are knocked down by a car, then the fault for that, the negligence may be on the part of the driver.
They may have not been looking or be, God forbid, looking at their phone. Yes. Or jumped a light.
There's all sorts of things that drivers can do. And they may be perfectly reasonable people outside the car, but when they get behind the wheel, something else takes over. So they make a mistake and somebody is injured.
And therefore, the driver is negligent and liable for compensation to the pedestrian. Now, the reality is that the driver will be insured, so it's his or her insurance company that will pay most of it. But if it's an accident where two drivers, two cars have hit each other, and it's either impossible to work out who was completely to blame and who was blameless, or more likely they were both partly to blame, then there is what's called contributory negligence.
So that if one driver, their car or indeed they or their passengers in that car are injured, and the car is damaged, but they have been, let's say, a third liable because then the law does this, it works out the percentages. They've been a third liable for the accident because although the other car came out of a junction, our car, the victim car, was going too fast, and therefore, if they'd gone at a proper speed, the accident wouldn't have happened. So there's shared liability.
In that situation, then, the insurance companies for both cars will get together and balance things out between themselves. But the physical victims, and it may be the driver in the victim car, and certainly his or her passengers. In fact, let's start with the passengers.
They're blameless because they're passengers and they've been injured. So they're entitled to claim against both the other car drivers' insurance and their own drivers' insurance. The driver who was injured in the victim car may get compensation from the other insurer, but limited, broken down because they were partly to blame.
So that was a kind of long explanation.
Angela: It's more complicated than you think.
Austin: Well, it is. And kind of that's that. I come back to the point that it's important that people either driving cars, being in cars, or walking over the streets have some idea that there are all these legal liability issues floating about.
And it's not simply a question of saying, oh, there was an accident, so there must be compensation. The compensation is based on this negligence, this carelessness, because a true accident where it's nobody's fault, there is no compensation because there's no one to blame. But where it is someone's fault, actually, that's about 99% of road accidents, where there is fault, then either somebody can be made to pay or more likely their insurance.
Angela: And related to that, in a public place, if you are a pedestrian, you could be walking along the street and, you know, it's a windy day and something falls on you or you slip on something, somebody's been cleaning and you're in the supermarket and you fall in, pull your back out or something. Is that always claimable?
Austin: It can be, typical lawyer's answer. Maybe yes, maybe no. But let's run through the scenarios.
Let's start with the supermarket because in a way, that's the easiest one. Supermarket owners are occupiers. They have occupiers' liability so that whoever is walking up and down the aisles, whether they are a customer, whether they are an employee, whether they are a visiting supplier looking at the shelves, or indeed, whether they're a shoplifter.
They all have the right to a safe walking surface, and also things not falling off a display on top of them. But sticking to the walking surface, we've all been in the supermarket where there's a wee board put up saying, caution, there's a wet surface because somebody has dropped a pint of milk or a crate of yogurt or whatever it is, and there's a puddle. Now, it is management's responsibility to very quickly identify the issue and put the boards up or cone it off or whatever it is.
So they cannot say, oh, we didn't know about it because nobody told us. There's got to be, as part of the legal requirements, there's got to be a system of inspection, checking, rechecking, that goes on through the working day in any premises where the public come in, so that even if somebody doesn't report it, you actually see what has happened because you're looking for it. It's one of the risks.
Back to your risk assessment, Angela, that's one of the risks, and they've got to assess it and control it and manage it. And actually, that segues straight on to the similar situation where you're walking down the street and something blows in or there's a puddle or somebody has been working and they've let some material go on to the pavement that makes you trip or fall or slip. The council, for roads and footpaths that are adopted by the council.
Now, some roads are private, some are public, and the public roads, the word we as lawyers use is adopted. And by adopted, it means the local authority has taken responsibility for it, for maintenance, for repair, for keeping it clear. And again, coming back to the system of inspection, you get people saying, oh, that pothole has been there for four months and the axle of my car went on it because nobody's fixed it, or that kerb at the edge of the pavement hasn't been fixed.
It's been reported to the council five times, and I went over and twisted my ankle. The council's responsibility in that situation is, if it's been reported to them and somebody comes a cropper because it's not been fixed, then the council may very well be liable for compensation. But even if not, then the council has a duty to have a system of inspection where they check each road, each pavement, each footpath within a certain period of time.
Now, that's not to say that they're safe. If they check it in the next day, a pothole or a sinkhole appears, they do have to have an active eyes on regime. But fundamentally, if there has been an obstruction of some sort, and it's been there for too long or somebody has reported that they've not done anything about it, the council in that situation will be liable.
But as we're walking down the street, we all have a responsibility to look after ourselves as best we can.
Angela : Try and avoid the potholes."
Austin: Try and avoid the potholes.
Angela: As my husband always says.
Austin: Yes. Don't put your face into your phone as you're walking along, and then be surprised when you trip over a kerb. Again, that comes back to this contributory negligence.
If you are behaving in such a way that you are not taking care of yourself, then it may be that that will limit or even remove your right to compensation. But if you have done everything reasonably possible, but still, maybe it's been snowing, the snow has gone over the potholes, so you can't see it and you trip and you break your ankle, then you almost certainly have a claim in that situation.
Angela: And then finally, another one I was thinking of were sports injuries. But I mean, that's not the workplace, is it? And if I'm choosing to take part in the sport, is that different?
Austin: It is different in that in my head, I have it that the threshold is kind of higher up. My sports are karate. I used to play rugby.
And all physical, all physical. And I've had injuries, niggles and things. And I take it in good part because the motivation, the purpose of participating is to do the sport as best we can in an environment with other people who are also trying to do the sport as best they can.
And nobody is trying to hurt me. I'm not certainly not trying to hurt anybody else. If somebody gets hurt, it's an accident, but it only becomes a matter for either criminal or civil liability if it was either deliberate or if it was so reckless and negligent that nobody in their right mind would ever have behaved that way on the pitch or in the dojo, as we call it, or doing other other sports.
For example, my wife does the park run, and everybody kind of cooperates. It can be a wee narrow place, some bits of the park or the weather conditions have made it wet, and everybody cooperates. So yes, occasionally people might jostle together and that's unavoidable.
It's part of the sport. But if somebody were to come up and take both their hands and shove you into a bush, then that would be actionable for sure.
Angela: I was just remembering last week, I was watching a bit of the French Open, and they had advertising boards at the back of the courts, and some of the women players, one of them fell over it and they were saying, you need to remove them because she got injured, her leg was all cut and everything. So I suppose that's the same as the occupier having to set the court up properly… risk assessment…
Austin: They should have done one. They should have done one, and they should have done it properly. And again, a risk assessment is an important thing just for the reasons you've said, and for other examples we've talked about.
And it shouldn't just be ticking a box and give it to the most junior person, do the risk assessment at the back of the court. It should be a proper management level thing where it is effective.
Angela: Yeah. Okay. Okay."
"So we've had a look at the different areas that you could have a claim. So can we have a look at the types of compensation for personal injury that the law would consider?
Austin: So some people may remember the Maryhill Plastics Factory blast.
Angela Yes, I do.
Austin: We had a number of clients who were workers and workers' families in that. And they were all heavily compensated because it was an absolutely terrible accident. And it was because of the failure to maintain, and I think it was pipes, gas pipes, failure to maintain the equipment and the infrastructure of the factory.
As a result of which the huge blast happened, and as a knock on effect or as a result of that blast, lots of people died and were injured. And therefore, in law, that brought about various areas of responsibility, criminal liability under the Health and Safety Act, and also civil liability, where a lot of people, both direct employees and also their loved ones, were able to make claims for compensation.
Angela: Yeah. So the different types of compensation, then you mentioned solatium."
Austin: Solatium, it's the Latinisation of the word solace, meaning comfort, support. And if somebody is injured and they have a physical injury, then solatium, that there's a kind of league table for compensation. And very, very roughly, it's intended to be the more serious the injury, the higher the amount of money.
So if you break an arm, I'm just going to use rough figures, you might be talking about a thousand pounds. If you break a leg, it might be two thousand pounds. If you have multiple injuries, then you add each one together, but then it can be kind of averaged down.
But the broad point is that there is a recognized scale of compensation for physical injuries. It's also affected by how old the person is, and whether it is more painful because of certain factors. Then with some people, a clean break of an arm and you're in a sling, in a plaster and a sling for several weeks, and then you go back to work, that's not as big an injury as if both legs are broken and you're unable to move and it's incredibly painful or...
Angela: I suppose the type of job that you have as well must be taken into account.
Austin: that's a segue on to the next head of claim. So the solaceum is based on the pain and suffering.
Angela: Okay.
Austin: Loss of earnings is the next thing. If you are unable to work, then you are compensated by way of the loss of wages or salary that you've missed, although that is less any benefits you might get as a result of being injured. So there's a bit of a mathematical thing done.
But the broad philosophy is that you should come out of the claim no worse off than when you went in. So it may be an amalgam of lost earnings that you're paid for, compensated for. But you've also had some benefits available to keep you going while you're waiting.
There's future loss of earnings. Now, you may think, oh, that's not much different from loss of earnings. It could be hugely different.
If you're off work for, say, eight weeks while your break heals, then you go back to work. And as long as you're able to do your job and resume it, that's fine. If you are so badly injured that either you can't go back to work at all, or you can only do a different job less well paid, then the law provides a mechanism within your claim or within your court action that enforces your claim.
Sorry, I'll do one bit in brackets. Most claims are settled out of court through either insurance companies or between lawyers. But if they can't be settled because the offer that you're given is not enough, or there are factors, they're saying you were partly to blame and you're saying, no, no, I wasn't, it was fully the other person's fault, then it may have to go to court.
And that is a much longer and much more stressful way of doing a claim. But anyway, those are the two things, and we'll come back to those in a second. But if your future loss of earnings is such that you say, well, I've not been able to get back to work, I won't be able to get back to work, then very often the conflict is with the insurance company on the other side.
They say, well, we think you'll get back to work in a year. And you say, well, I don't think so. And my doctors and my employment expert says, I'm unlikely to be able to work for five years or ever again.
Then because we don't know the future, and we've got to kind of estimate and calculate, that can very often be a difficult thing to negotiate, is this future loss of earnings. Because if you accept too little, and then a couple of years down the line, you can't go back to work, you've got no money, you've missed out.
Angela: So that's part of the evidence that you have to prove?
Austin: That's right. If you get five years worth of future lost earnings, but you know perfectly well, you're actually getting a bit better, and you go back to work after a year, then that's unfair. And insurance companies are frightened of that.
So they make it very difficult sometimes to calculate or negotiate future loss of earnings. There's other heads of claim such as loss of society. If the person who was injured actually dies, then the family have a claim.
Angela: Now, it's that who society are?
Austin: Well, yes, in this case, society is not, it's not only Mrs. Thatcher, there's no such thing as society. In this case, again, it's an old Scottish legal word, society, meaning your own social network. But even then, it really just means your family.
So it can be children, it can be a spouse, it can be a partner, it can be other members of the family to whom their loss of you is a sad thing and therefore they are entitled to be compensated for that. There are other heads of claim, such as expenses, costs, outlays. For example, if you are injured so badly, you can no longer walk and you have to have, say, an adapted car, then that can be something that can be claimed for.
So loads and loads of different things, like fingerprints, everybody's individual accident or claim or life or future is different. And therefore, what the law is geared up to do is to assess everything and say, well, for this individual claimant, here's the amount of compensation we think, and here is how it's broken down. And there are specialists, as well as doctors, there are other specialists who are able to take a claim and work out future losses and other losses.
The evidential side of it is very important. If you have any kind of accident, you must try and get into your mind that you are an evidence gatherer immediately. Now, that may be as simple as taking photographs of the pothole you've just tripped over, or taking photographs of the car accident where the cars end up, the position they end up in, or writing out a statement of everything that's happened so you remember it.
I mean, I had a situation where I was just a shopper in a shopping centre, and I came out to go to my car, and two other cars had an accident in front of me. But as they came out, it became clear that the driver and passenger of one car had caused the accident, but were already trying to put the blame on the other one. So I took photographs and I spoke to everybody and said, I'm a solicitor, I'm not going to act for anybody, but I'm a witness to this, and here is what I can see happened.
And I took everybody's details and I got a statement. I made up a statement and I provided it to all parties. I never heard anything back from anybody, so I can only assume it was settled.
Angela: But I'm sure they must have been glad if the person who was getting the finger pointed.
Austin: She was, she was glad. And she did she contacted me. And I say I never heard anything.
I never heard from lawyers or insurance companies. But she contacted me to say, thank you, I'm glad you were there. And I said, well, I'd like to think anybody else would have done that because anybody else there should have done that kind of thing.
So that's, that's the gathering of evidence. Because the worst thing, if you've got a claim, you've been injured, and you lack evidence ….
Angela: because you might not be able if you're injured.
Austin: That's right.
Exactly. So if you are injured and you're taken to hospital, then it can be problematic to kind of recreate, you know, the circumstances of the accident and get information from anybody that was there. In that situation, almost inevitably, the police will be called and they will investigate the accident neutrally and professionally.
So where there is either a car crash or some other kind of accident, very often you can get a copy of the police incident report and work back from there. And insurance companies will do that routinely. And your solicitor, if you need to instruct a solicitor in doing your claim, that's part of what they will do almost immediately.
If you can, then get names and addresses and photographs and jot down what has happened and keep that process going until you have to consult or are able to consult somebody who can take up the claim on your behalf.
Angela: Now, this sounds like it's quite a long process. Is there a time limit for launching your claim"
Austin: There very much is. The phrase time bar may be something that people have heard. Here the time bar is very particular, and it's three years.
In Scots law, it's three years. From the date of the accident until you must get your claim either settled or started in court. So there is a stopwatch that starts running from the moment the accident happens.
And if your claim is settled out of court, that's great, but it needs to be settled out of court before the end of that three year period. If it can't be settled out of court, then long before that three years comes up, you, your solicitor, has to get the case into court. It doesn't need to be finished in court.
It needs to be started in court. And that can be something that causes people problems. Now, there are some situations where the time bar can be extended. A classic one is where you were at work, and the work circumstances caused you a disease, maybe mesothelioma or some other breathing injury, which didn't become apparent until maybe years later, after you'd finished work. But from the moment it became apparent that your situation, your health situation, or injury or illness was caused by the activities or failure.
Angela: Is that asbestos, things like that?
Austin: Yes, that's right. So if it once becomes apparent or reasonable to assume or you know that your illness was caused by circumstances X number of years before, the three years starts running then at this point. My message to anybody who thinks they may have a claim is think of evidence, think of time bar, and think what it would mean to go through the process of a claim or indeed a court case to get compensation and get advice on all of those things sooner rather than later.
Angela: Can we talk about costs then? Because this is not going to be cheap, I can imagine.
Austin: That's right. It used to be that Scottish lawyers were not allowed to do anything other than charge a fee, do the work, and then the compensation all went to the client. And then a few years ago, the business of no win, no fee came in and is almost universal now.
You can still get legal aid for a case, but legal aid is very difficult to get, both in terms of the thresholds for your personal means allowing you to qualify for it. But also, you can only get legal aid if the legal aid board think that you have a case. Now, if you have a strong case and you are completely unable to earn and your on benefits, then it may be possible to get legal aid.
And that will see through the whole funding up to the point of settlement or the case finishing. But much, much more than that these days, you have the no win, no fee offer from solicitors and others, you know, claims management companies. Incidentally, solicitors are regulated, as we know, by the Law Society of Scotland, but claims management companies that are not lawyers are regulated by the Financial Conduct Authority.
But they are different. They are not solicitors. And if the case is not settled and has to go to court, they need to instruct solicitors.
But broadly, it's this. If you can get a solicitor, firm of solicitors, and they should be specialised and experienced in this kind of work, to take on the case and to do it on a no-win, no-fee basis, then they will meet or their funders will meet all of the costs. And the costs can be considerable.
As you said, it can be very expensive medical reports. It can be other specialist input that charges a fee every time a report has to be brought in. It can be hours and hours of work by the lawyers in researching your claim, speaking to witnesses, checking the law, and sometimes in difficult or groundbreaking cases, the law is not certain.
So they have to speculate and take a risk and consider all options and even look internationally to see what the law is in other jurisdictions. So that can be thousands or tens of thousands of pounds. So the deal is that if they then settle your case or win your case, although you as a client still have a right, you know, they don't settle it over your head.
You are involved all the time and finally, ultimately, it's your final decision as to accept.
But once that's done, the solicitors can take a chunk of the award. There are very strict rules within the law society about how those agreements are regulated and carried out. The solicitors cannot and they don't, but they cannot browbeat you or say one thing and do another.
It is highly regulated, but the balance of fairness is intended to be that. They will put their resources, effort, expertise, and energy into the claim. You will get an award and they will get a modest part of it for helping you in a situation where you could not help yourself.
Angela: How long did these cases run for? Because I have a feeling that's a long time, is it?
Austin: It can be. It's likely to be months, and I'm going to say, unlikely to be less than six months for a normal accident type of thing. It can be a lot longer than that.
Indeed, it can stray into this period of three years that we were talking about for the time bar. In court, it can take months, it can take years, particularly if it's a very complex medical situation or complex evidential situation. So somebody going into court would say to themselves, this isn't going to finish this year, and it might go on longer than that.
So it is a slow process. And that's why I'm saying, if somebody is going to make a claim of any sort, then they've got to be sat down by the person managing the claim, usually a solicitor, should be a solicitor, and talked through what's going to happen. It's not just a question of saying, oh, you've had an accident, right?
Well, show me your leg. Oh, it's broken. Yes.
I'll make the claim. There's a huge amount of preparation and advice and counselling to be done before you proceed, because it is, the accident has been distressing, or the period of illness at work has been distressing, but any legal process that's contentious can be very challenging indeed.
Angela: So would you want to put yourself through it?
Would you want to put yourself through it? And if the answer is yes, then as long as you do it fully informed of what the ups and downs and ins and outs are, that's fine. Rather than finding out, saying to the solicitor seven months down the line, is anything happening on this claim?
Oh, yes, this is the way it always goes. Oh, it would have been good if you told me that. So the solicitor's job is not just to make the claim, but to do it in a way that supports the claimant, the client in every aspect of it.
Angela: And you mentioned there, you know, abroad you might look internationally. What if you have an accident on holiday? Would your travel insurance cover you or?
Austin: Make sure you've got good travel insurance. And although we're irritated when we book a flight that the airlines at every stage say, are you covered? Are you covered?
It's actually in their best interests as well, because if something goes wrong or the flight's cancelled or delayed, then if you are insured, then that's better all round. A point about insurance is this. Insurance is not like buying a suite of furniture or a Mars bar.
Insurance is a very detailed contract, and it's what we in the law call a contract of utmost good faith, uberrima fides, is the Latin. And what that means is that if you take on insurance, and it is found later on, when you make a claim perhaps, that part of the statement of facts that set up the insurance was wrong, then the insurance company can say, you are in breach of your policy, therefore we're not going to pay out. And the classic is this, particularly with travel insurance.
If you have had health incidents before, you've got a heart condition or you've had a heart murmur, something that didn't amount to anything, but you got treatment on heart arrhythmia. If you fail to tell the insurer about some health condition that you have had, and it doesn't need to be anything terribly serious, but it could be a wee bit of heart arrhythmia or just an episode.
Angela: High blood pressure or something like that.
Austin: And you find out, or they find out after the accident, when you had a heart attack on holiday, that you had this before. They might very well say, well, you weren't truthful about your medical history, and therefore we're not supporting this claim. So with insurance, I know it's easy to buy it online. Be very careful that either the policy is not dependent on your medical or health history, or that if it is, that you provide a full and accurate medical health history. I cannot stress this enough. And it applies not just to an accident abroad, but an accident anywhere, if you have medical cover for anything, or indeed, again, coming back to your car insurance, if you haven't told the insurers about points that you got, or a bump that you were in, or indeed a medical condition, then they may say that your insurance is invalid for that accident.
So abroad, be very sure that you are insured. But one other thing to say about car accidents, where if you are struck or injured or suffer loss or injury as a result of an uninsured driver hitting you or being in a crash, then there is a scheme through, funnily enough, the Motor Insurance Bureau's uninsured driver scheme, where the Motor Insurance Bureau is a kind of amalgam of all the insurance companies. The industry have this scheme whereby you can make a claim against the Motor Insurance Bureau and it will be treated as a normal claim. So you can get full compensation from that and they have the right, if they choose to, to go against the individual who was uninsured. That person may not have any money, so it's a paper exercise. But it's just important as a kind of adjunct that I say, if you're in an accident and the word comes through that the other driver doesn't have insurance, don't forget about it.
See a solicitor because solicitors do know about the uninsured driver scheme and you can check online.
Angela: You can do something about it.
Austin: Yeah, a solicitor will see you through that.
Angela: And one final thing I've just remembered, and that's quite often come up. Someone has some sort of injury in the hairdressers, you know, and their scalp has been burned or that kind of thing. How would you go about claiming on that?
Well, same scenario, the hairdressers should have insurance.
Austin: Yes. Anybody that knows me knows that I've very rarely been to hairdressers for a great many years. But I'll talk in theory.
No, it's absolutely right. Anybody carrying out a process and it could be a tattooist or a piercer, or somebody who is serving you in a shop.
Angela: Because they do ask you to sign things now when you go and get any treatments, you know.
Austin: As a consumer, you cannot sign away your rights not to be harmed. By all means, the hairdresser can give a warning or have a set of terms and conditions, but they cannot be unfair terms and conditions. And injuring you with chemicals or with implements really falls out with any escape of liability clause in a set of terms and conditions or a contract.
So if they do that, then again, evidence immediately, take. photographs, go and see either a doctor or make sure that you see somebody else who sees the state of your scalp, so that you can make sure that it is clear and provable that it was this hairdresser. Because the hairdresser might say, oh no, it wasn't me. Out of panic, they may say, it must have been like that before, but it wasn't me because my chemicals are safe.
And just not be honest about it and not be cooperative about it. I would like to think that, nine hairdressers out of ten would say, I'm really sorry. My insurance will pay for this.
Let's get things together and report it and whatnot. But if they don't, then what you need to do is immediately start the ball rolling for your claim by way of retaining evidence. And that can be photographic evidence.
It can be a doctor's report. You might get an emergency appointment with a doctor saying, look, I need my scalp to be treated because it's come out in this. And that doctor's evidence will be entirely competent evidence if it comes to a claim.
For that kind of thing, if it is painful, but resolves itself quite quickly, then it won't be a massive claim. It might be in the hundreds of pounds. It might stray into four figures.
If it causes you not to be able to work, then we talked about loss of earnings. That may come into it. But that is most certainly a claim in that situation, because you can't be contributory negligent.
You're sitting there with a gown on and somebody is plastering your head with this poison, and it's entirely their fault. And indeed, they have a professional responsibility. It's not as if they said, oh, I didn't know what I was doing.
You've gone and relied on their professional ability, and therefore, you are entitled to compensation if they fail to live up to that professional responsibility. And one other thing to say, all professionals, by and large, have a responsibility to their clients or customers. Doctors do, lawyers do.
If you go and see a lawyer and they get it wrong when they shouldn't have got it wrong and you lose out as a result, then lawyers are all insured and have also a law society compensation scheme. Doctors are heavily insured and protected, so that if they cut off the wrong leg, then there is a very well-known and tried and trusted path to getting compensation from those who represent those doctors. Surveyors are the same, architects, you name it.
Any professional person is the same as a commercial operation. They have a duty to their customers and clients, and if they fail in that duty and the customer or client loses out, then very often there is a claim.
Angela: So to sum up, if someone is unlucky enough to have an accident, what would your best advice be when considering if they should make a claim?
Angela: Whatever kind of claim it may be, and whether the person knows they have a claim or isn't sure, or just thinks I might have a claim, go and see a solicitor, somebody who is expert in assessing, triaging, you might say if it was doctors, your claim. And it may be that you don't have a claim, but you've done the right thing by going to take advice. And most solicitors will give an initial interview, initial consultation without charge.
We certainly will. And that allows you to move away from the thing, either saying, right, I didn't have a claim, it was an accident, but legally, I can't proceed, but at least I know that and I can move on. Or saying, the solicitor says, I may very well have a claim, subject to evidence, etc.
So, I can now sit back and maybe with my family, make the decision, am I going to go forward with this? Will I take on this additional stress? Because it's a matter of injustice, but I've lost out.
I've lost money and I've had pain and suffering. So legally and morally and injustice, I am entitled to recompense.
Angela: Okay. Thanks very much.
Austin: My pleasure.
Austin Hi, Angela.
Angela: Now, as the song goes, if you remember it, accidents will happen. They're an everyday part of life, whether it be on the roads or at work, or even on holiday or playing sport. But the fallout can be devastating, and it's not just ongoing health issues.
It's the subsequent financial losses. Perhaps you can't work, or your spouse or child has ongoing medical needs. That's when you need to think about whether you have a claim, and that's an area we're going to explore today.
Austin, there was a case recently about UK athletics, I think it was, being fined a huge amount of money when equipment fell at a training ground and caused the death of a Paralympian. And that might seem rare, but accidents at work or on the roads are common. How do know when you might have a claim?
Austin: Well, the history of accidents at work and machinery is a sad one, but it's a very, very long one and very detailed. Basically, wherever you set up equipment or physical items stacked up vertically, there is the chance of an accident. The law has developed over many years and it's well settled now, that there is an obligation on the part of, let's talk about at work employers, although this applies if you go into the shops or supermarket or somebody's office to consult them.In fact, let's just open it out. Occupiers, as they're called, who are either the tenants or owners of buildings that are operating within them, and bringing in the general public or employees, they've all got an overwhelming liability and responsibility to make the place and keep the place safe. Now, environmental health and health and safety get a bit of a bad rap.
They talk about health and safety gone mad. Health and safety, by and large, doesn't go mad. It is utterly essential.
Talk about the equipment falling on the athlete. That is somebody's fault. Somebody has been negligent either in the way that the area was set up, the planning of it, the direction from management and put this there and stack that up there.
Or else, it's somebody who has been carrying out the work in stacking things up or arranging things or putting things in place, who has made a mistake of judgment. They've been careless, they've been negligent. And negligent is a word that you and I will be using throughout this discussion again and again."
You may say, well, if it's just some bod, they've brought in to do a day's work as a freelancer, stacking up stuff, then it's that person's liability, not the management. And the law, again, well settled is not that. The law is that what they call vicarious liability applies.
And vicarious liability, it's got the word vicar in it. I'm never quite sure where that's ever come from. But it means that whoever is in a final charge of the operation, and therefore instructing the employees, the agents, the workers, even if the employees, agents or workers make the mistake, the liability, so the claim for compensation goes on the bosses, the employers.
Angela: Yeah, I think that it wasn't just a huge fine. I think someone also got some sort of penalty as well, or had to do community service or something like that.
Austin: Well, yes. And actually that's a really good point. There are different kinds of liability.
There is criminal liability, and our health and safety legislation in this country is very exacting. The responsibility on companies or individuals can be high, and it can be a combination of a kind of corporate thing, where the company gets fined for breaching health and safety laws, criminal laws, that they're in court and they're convicted and fined. But if individuals have acted in a way that is in personal breach of these laws, they can be sanctioned as well, and there can be penalties such as individual fines, compensation orders, or indeed the jail if it comes to it.
But the other side of that coin, that's the criminal world. But the other side of the coin is the civil liability. And running alongside that criminal regime, if somebody has been affected, injured, has suffered as a result of failures in health and safety, it may also be a failure in the civil courts.
And therefore, as well as those criminal penalties of company fines and so forth, the company or its insurer, and again, let's come back to insurers in a minute, may have to pay compensation to the sufferer or to their family if, God forbid, they've died as a result of the accident. And that compensation can be loss of earnings in the future.
It can be what we call solatium, which is a general payment for suffering.
So if somebody breaches health and safety, or just runs a badly organized workplace so that people are in danger, then they can be made to pay all sorts of penalties, both criminal and civil.
Angela: Yeah, I do remember having to do risk assessments in my former role. So we've looked slightly at accidents at work. But then there's also road traffic accidents.
If it's an accident though, when would you have a claim?
Austin: Well, again, let's come back to negligence. And you know the phrase careless driving. And again, if somebody has been in an accident and really has caused it, then they may be guilty in the criminal courts of road traffic offences, such as careless driving or even dangerous driving, reckless driving, or causing death by dangerous driving, which is a horrific thing.
But also liable in civil law for compensation. Now, the tests are slightly different, criminal and civil. In criminal, it's beyond reasonable doubt.
We'll literally park that to one side and stick with the civil. Because it's very important that people going about their daily business on the roads, either as drivers, passengers, or pedestrians, have some idea of what the legal issues are arising. If you are a pedestrian and you are knocked down by a car, then the fault for that, the negligence may be on the part of the driver.
They may have not been looking or be, God forbid, looking at their phone. Yes. Or jumped a light.
There's all sorts of things that drivers can do. And they may be perfectly reasonable people outside the car, but when they get behind the wheel, something else takes over. So they make a mistake and somebody is injured.
And therefore, the driver is negligent and liable for compensation to the pedestrian. Now, the reality is that the driver will be insured, so it's his or her insurance company that will pay most of it. But if it's an accident where two drivers, two cars have hit each other, and it's either impossible to work out who was completely to blame and who was blameless, or more likely they were both partly to blame, then there is what's called contributory negligence.
So that if one driver, their car or indeed they or their passengers in that car are injured, and the car is damaged, but they have been, let's say, a third liable because then the law does this, it works out the percentages. They've been a third liable for the accident because although the other car came out of a junction, our car, the victim car, was going too fast, and therefore, if they'd gone at a proper speed, the accident wouldn't have happened. So there's shared liability.
In that situation, then, the insurance companies for both cars will get together and balance things out between themselves. But the physical victims, and it may be the driver in the victim car, and certainly his or her passengers. In fact, let's start with the passengers.
They're blameless because they're passengers and they've been injured. So they're entitled to claim against both the other car drivers' insurance and their own drivers' insurance. The driver who was injured in the victim car may get compensation from the other insurer, but limited, broken down because they were partly to blame.
So that was a kind of long explanation.
Angela: It's more complicated than you think.
Austin: Well, it is. And kind of that's that. I come back to the point that it's important that people either driving cars, being in cars, or walking over the streets have some idea that there are all these legal liability issues floating about.
And it's not simply a question of saying, oh, there was an accident, so there must be compensation. The compensation is based on this negligence, this carelessness, because a true accident where it's nobody's fault, there is no compensation because there's no one to blame. But where it is someone's fault, actually, that's about 99% of road accidents, where there is fault, then either somebody can be made to pay or more likely their insurance.
Angela: And related to that, in a public place, if you are a pedestrian, you could be walking along the street and, you know, it's a windy day and something falls on you or you slip on something, somebody's been cleaning and you're in the supermarket and you fall in, pull your back out or something. Is that always claimable?
Austin: It can be, typical lawyer's answer. Maybe yes, maybe no. But let's run through the scenarios.
Let's start with the supermarket because in a way, that's the easiest one. Supermarket owners are occupiers. They have occupiers' liability so that whoever is walking up and down the aisles, whether they are a customer, whether they are an employee, whether they are a visiting supplier looking at the shelves, or indeed, whether they're a shoplifter.
They all have the right to a safe walking surface, and also things not falling off a display on top of them. But sticking to the walking surface, we've all been in the supermarket where there's a wee board put up saying, caution, there's a wet surface because somebody has dropped a pint of milk or a crate of yogurt or whatever it is, and there's a puddle. Now, it is management's responsibility to very quickly identify the issue and put the boards up or cone it off or whatever it is.
So they cannot say, oh, we didn't know about it because nobody told us. There's got to be, as part of the legal requirements, there's got to be a system of inspection, checking, rechecking, that goes on through the working day in any premises where the public come in, so that even if somebody doesn't report it, you actually see what has happened because you're looking for it. It's one of the risks.
Back to your risk assessment, Angela, that's one of the risks, and they've got to assess it and control it and manage it. And actually, that segues straight on to the similar situation where you're walking down the street and something blows in or there's a puddle or somebody has been working and they've let some material go on to the pavement that makes you trip or fall or slip. The council, for roads and footpaths that are adopted by the council.
Now, some roads are private, some are public, and the public roads, the word we as lawyers use is adopted. And by adopted, it means the local authority has taken responsibility for it, for maintenance, for repair, for keeping it clear. And again, coming back to the system of inspection, you get people saying, oh, that pothole has been there for four months and the axle of my car went on it because nobody's fixed it, or that kerb at the edge of the pavement hasn't been fixed.
It's been reported to the council five times, and I went over and twisted my ankle. The council's responsibility in that situation is, if it's been reported to them and somebody comes a cropper because it's not been fixed, then the council may very well be liable for compensation. But even if not, then the council has a duty to have a system of inspection where they check each road, each pavement, each footpath within a certain period of time.
Now, that's not to say that they're safe. If they check it in the next day, a pothole or a sinkhole appears, they do have to have an active eyes on regime. But fundamentally, if there has been an obstruction of some sort, and it's been there for too long or somebody has reported that they've not done anything about it, the council in that situation will be liable.
But as we're walking down the street, we all have a responsibility to look after ourselves as best we can.
Angela : Try and avoid the potholes."
Austin: Try and avoid the potholes.
Angela: As my husband always says.
Austin: Yes. Don't put your face into your phone as you're walking along, and then be surprised when you trip over a kerb. Again, that comes back to this contributory negligence.
If you are behaving in such a way that you are not taking care of yourself, then it may be that that will limit or even remove your right to compensation. But if you have done everything reasonably possible, but still, maybe it's been snowing, the snow has gone over the potholes, so you can't see it and you trip and you break your ankle, then you almost certainly have a claim in that situation.
Angela: And then finally, another one I was thinking of were sports injuries. But I mean, that's not the workplace, is it? And if I'm choosing to take part in the sport, is that different?
Austin: It is different in that in my head, I have it that the threshold is kind of higher up. My sports are karate. I used to play rugby.
And all physical, all physical. And I've had injuries, niggles and things. And I take it in good part because the motivation, the purpose of participating is to do the sport as best we can in an environment with other people who are also trying to do the sport as best they can.
And nobody is trying to hurt me. I'm not certainly not trying to hurt anybody else. If somebody gets hurt, it's an accident, but it only becomes a matter for either criminal or civil liability if it was either deliberate or if it was so reckless and negligent that nobody in their right mind would ever have behaved that way on the pitch or in the dojo, as we call it, or doing other other sports.
For example, my wife does the park run, and everybody kind of cooperates. It can be a wee narrow place, some bits of the park or the weather conditions have made it wet, and everybody cooperates. So yes, occasionally people might jostle together and that's unavoidable.
It's part of the sport. But if somebody were to come up and take both their hands and shove you into a bush, then that would be actionable for sure.
Angela: I was just remembering last week, I was watching a bit of the French Open, and they had advertising boards at the back of the courts, and some of the women players, one of them fell over it and they were saying, you need to remove them because she got injured, her leg was all cut and everything. So I suppose that's the same as the occupier having to set the court up properly… risk assessment…
Austin: They should have done one. They should have done one, and they should have done it properly. And again, a risk assessment is an important thing just for the reasons you've said, and for other examples we've talked about.
And it shouldn't just be ticking a box and give it to the most junior person, do the risk assessment at the back of the court. It should be a proper management level thing where it is effective.
Angela: Yeah. Okay. Okay."
"So we've had a look at the different areas that you could have a claim. So can we have a look at the types of compensation for personal injury that the law would consider?
Austin: So some people may remember the Maryhill Plastics Factory blast.
Angela Yes, I do.
Austin: We had a number of clients who were workers and workers' families in that. And they were all heavily compensated because it was an absolutely terrible accident. And it was because of the failure to maintain, and I think it was pipes, gas pipes, failure to maintain the equipment and the infrastructure of the factory.
As a result of which the huge blast happened, and as a knock on effect or as a result of that blast, lots of people died and were injured. And therefore, in law, that brought about various areas of responsibility, criminal liability under the Health and Safety Act, and also civil liability, where a lot of people, both direct employees and also their loved ones, were able to make claims for compensation.
Angela: Yeah. So the different types of compensation, then you mentioned solatium."
Austin: Solatium, it's the Latinisation of the word solace, meaning comfort, support. And if somebody is injured and they have a physical injury, then solatium, that there's a kind of league table for compensation. And very, very roughly, it's intended to be the more serious the injury, the higher the amount of money.
So if you break an arm, I'm just going to use rough figures, you might be talking about a thousand pounds. If you break a leg, it might be two thousand pounds. If you have multiple injuries, then you add each one together, but then it can be kind of averaged down.
But the broad point is that there is a recognized scale of compensation for physical injuries. It's also affected by how old the person is, and whether it is more painful because of certain factors. Then with some people, a clean break of an arm and you're in a sling, in a plaster and a sling for several weeks, and then you go back to work, that's not as big an injury as if both legs are broken and you're unable to move and it's incredibly painful or...
Angela: I suppose the type of job that you have as well must be taken into account.
Austin: that's a segue on to the next head of claim. So the solaceum is based on the pain and suffering.
Angela: Okay.
Austin: Loss of earnings is the next thing. If you are unable to work, then you are compensated by way of the loss of wages or salary that you've missed, although that is less any benefits you might get as a result of being injured. So there's a bit of a mathematical thing done.
But the broad philosophy is that you should come out of the claim no worse off than when you went in. So it may be an amalgam of lost earnings that you're paid for, compensated for. But you've also had some benefits available to keep you going while you're waiting.
There's future loss of earnings. Now, you may think, oh, that's not much different from loss of earnings. It could be hugely different.
If you're off work for, say, eight weeks while your break heals, then you go back to work. And as long as you're able to do your job and resume it, that's fine. If you are so badly injured that either you can't go back to work at all, or you can only do a different job less well paid, then the law provides a mechanism within your claim or within your court action that enforces your claim.
Sorry, I'll do one bit in brackets. Most claims are settled out of court through either insurance companies or between lawyers. But if they can't be settled because the offer that you're given is not enough, or there are factors, they're saying you were partly to blame and you're saying, no, no, I wasn't, it was fully the other person's fault, then it may have to go to court.
And that is a much longer and much more stressful way of doing a claim. But anyway, those are the two things, and we'll come back to those in a second. But if your future loss of earnings is such that you say, well, I've not been able to get back to work, I won't be able to get back to work, then very often the conflict is with the insurance company on the other side.
They say, well, we think you'll get back to work in a year. And you say, well, I don't think so. And my doctors and my employment expert says, I'm unlikely to be able to work for five years or ever again.
Then because we don't know the future, and we've got to kind of estimate and calculate, that can very often be a difficult thing to negotiate, is this future loss of earnings. Because if you accept too little, and then a couple of years down the line, you can't go back to work, you've got no money, you've missed out.
Angela: So that's part of the evidence that you have to prove?
Austin: That's right. If you get five years worth of future lost earnings, but you know perfectly well, you're actually getting a bit better, and you go back to work after a year, then that's unfair. And insurance companies are frightened of that.
So they make it very difficult sometimes to calculate or negotiate future loss of earnings. There's other heads of claim such as loss of society. If the person who was injured actually dies, then the family have a claim.
Angela: Now, it's that who society are?
Austin: Well, yes, in this case, society is not, it's not only Mrs. Thatcher, there's no such thing as society. In this case, again, it's an old Scottish legal word, society, meaning your own social network. But even then, it really just means your family.
So it can be children, it can be a spouse, it can be a partner, it can be other members of the family to whom their loss of you is a sad thing and therefore they are entitled to be compensated for that. There are other heads of claim, such as expenses, costs, outlays. For example, if you are injured so badly, you can no longer walk and you have to have, say, an adapted car, then that can be something that can be claimed for.
So loads and loads of different things, like fingerprints, everybody's individual accident or claim or life or future is different. And therefore, what the law is geared up to do is to assess everything and say, well, for this individual claimant, here's the amount of compensation we think, and here is how it's broken down. And there are specialists, as well as doctors, there are other specialists who are able to take a claim and work out future losses and other losses.
The evidential side of it is very important. If you have any kind of accident, you must try and get into your mind that you are an evidence gatherer immediately. Now, that may be as simple as taking photographs of the pothole you've just tripped over, or taking photographs of the car accident where the cars end up, the position they end up in, or writing out a statement of everything that's happened so you remember it.
I mean, I had a situation where I was just a shopper in a shopping centre, and I came out to go to my car, and two other cars had an accident in front of me. But as they came out, it became clear that the driver and passenger of one car had caused the accident, but were already trying to put the blame on the other one. So I took photographs and I spoke to everybody and said, I'm a solicitor, I'm not going to act for anybody, but I'm a witness to this, and here is what I can see happened.
And I took everybody's details and I got a statement. I made up a statement and I provided it to all parties. I never heard anything back from anybody, so I can only assume it was settled.
Angela: But I'm sure they must have been glad if the person who was getting the finger pointed.
Austin: She was, she was glad. And she did she contacted me. And I say I never heard anything.
I never heard from lawyers or insurance companies. But she contacted me to say, thank you, I'm glad you were there. And I said, well, I'd like to think anybody else would have done that because anybody else there should have done that kind of thing.
So that's, that's the gathering of evidence. Because the worst thing, if you've got a claim, you've been injured, and you lack evidence ….
Angela: because you might not be able if you're injured.
Austin: That's right.
Exactly. So if you are injured and you're taken to hospital, then it can be problematic to kind of recreate, you know, the circumstances of the accident and get information from anybody that was there. In that situation, almost inevitably, the police will be called and they will investigate the accident neutrally and professionally.
So where there is either a car crash or some other kind of accident, very often you can get a copy of the police incident report and work back from there. And insurance companies will do that routinely. And your solicitor, if you need to instruct a solicitor in doing your claim, that's part of what they will do almost immediately.
If you can, then get names and addresses and photographs and jot down what has happened and keep that process going until you have to consult or are able to consult somebody who can take up the claim on your behalf.
Angela: Now, this sounds like it's quite a long process. Is there a time limit for launching your claim"
Austin: There very much is. The phrase time bar may be something that people have heard. Here the time bar is very particular, and it's three years.
In Scots law, it's three years. From the date of the accident until you must get your claim either settled or started in court. So there is a stopwatch that starts running from the moment the accident happens.
And if your claim is settled out of court, that's great, but it needs to be settled out of court before the end of that three year period. If it can't be settled out of court, then long before that three years comes up, you, your solicitor, has to get the case into court. It doesn't need to be finished in court.
It needs to be started in court. And that can be something that causes people problems. Now, there are some situations where the time bar can be extended. A classic one is where you were at work, and the work circumstances caused you a disease, maybe mesothelioma or some other breathing injury, which didn't become apparent until maybe years later, after you'd finished work. But from the moment it became apparent that your situation, your health situation, or injury or illness was caused by the activities or failure.
Angela: Is that asbestos, things like that?
Austin: Yes, that's right. So if it once becomes apparent or reasonable to assume or you know that your illness was caused by circumstances X number of years before, the three years starts running then at this point. My message to anybody who thinks they may have a claim is think of evidence, think of time bar, and think what it would mean to go through the process of a claim or indeed a court case to get compensation and get advice on all of those things sooner rather than later.
Angela: Can we talk about costs then? Because this is not going to be cheap, I can imagine.
Austin: That's right. It used to be that Scottish lawyers were not allowed to do anything other than charge a fee, do the work, and then the compensation all went to the client. And then a few years ago, the business of no win, no fee came in and is almost universal now.
You can still get legal aid for a case, but legal aid is very difficult to get, both in terms of the thresholds for your personal means allowing you to qualify for it. But also, you can only get legal aid if the legal aid board think that you have a case. Now, if you have a strong case and you are completely unable to earn and your on benefits, then it may be possible to get legal aid.
And that will see through the whole funding up to the point of settlement or the case finishing. But much, much more than that these days, you have the no win, no fee offer from solicitors and others, you know, claims management companies. Incidentally, solicitors are regulated, as we know, by the Law Society of Scotland, but claims management companies that are not lawyers are regulated by the Financial Conduct Authority.
But they are different. They are not solicitors. And if the case is not settled and has to go to court, they need to instruct solicitors.
But broadly, it's this. If you can get a solicitor, firm of solicitors, and they should be specialised and experienced in this kind of work, to take on the case and to do it on a no-win, no-fee basis, then they will meet or their funders will meet all of the costs. And the costs can be considerable.
As you said, it can be very expensive medical reports. It can be other specialist input that charges a fee every time a report has to be brought in. It can be hours and hours of work by the lawyers in researching your claim, speaking to witnesses, checking the law, and sometimes in difficult or groundbreaking cases, the law is not certain.
So they have to speculate and take a risk and consider all options and even look internationally to see what the law is in other jurisdictions. So that can be thousands or tens of thousands of pounds. So the deal is that if they then settle your case or win your case, although you as a client still have a right, you know, they don't settle it over your head.
You are involved all the time and finally, ultimately, it's your final decision as to accept.
But once that's done, the solicitors can take a chunk of the award. There are very strict rules within the law society about how those agreements are regulated and carried out. The solicitors cannot and they don't, but they cannot browbeat you or say one thing and do another.
It is highly regulated, but the balance of fairness is intended to be that. They will put their resources, effort, expertise, and energy into the claim. You will get an award and they will get a modest part of it for helping you in a situation where you could not help yourself.
Angela: How long did these cases run for? Because I have a feeling that's a long time, is it?
Austin: It can be. It's likely to be months, and I'm going to say, unlikely to be less than six months for a normal accident type of thing. It can be a lot longer than that.
Indeed, it can stray into this period of three years that we were talking about for the time bar. In court, it can take months, it can take years, particularly if it's a very complex medical situation or complex evidential situation. So somebody going into court would say to themselves, this isn't going to finish this year, and it might go on longer than that.
So it is a slow process. And that's why I'm saying, if somebody is going to make a claim of any sort, then they've got to be sat down by the person managing the claim, usually a solicitor, should be a solicitor, and talked through what's going to happen. It's not just a question of saying, oh, you've had an accident, right?
Well, show me your leg. Oh, it's broken. Yes.
I'll make the claim. There's a huge amount of preparation and advice and counselling to be done before you proceed, because it is, the accident has been distressing, or the period of illness at work has been distressing, but any legal process that's contentious can be very challenging indeed.
Angela: So would you want to put yourself through it?
Would you want to put yourself through it? And if the answer is yes, then as long as you do it fully informed of what the ups and downs and ins and outs are, that's fine. Rather than finding out, saying to the solicitor seven months down the line, is anything happening on this claim?
Oh, yes, this is the way it always goes. Oh, it would have been good if you told me that. So the solicitor's job is not just to make the claim, but to do it in a way that supports the claimant, the client in every aspect of it.
Angela: And you mentioned there, you know, abroad you might look internationally. What if you have an accident on holiday? Would your travel insurance cover you or?
Austin: Make sure you've got good travel insurance. And although we're irritated when we book a flight that the airlines at every stage say, are you covered? Are you covered?
It's actually in their best interests as well, because if something goes wrong or the flight's cancelled or delayed, then if you are insured, then that's better all round. A point about insurance is this. Insurance is not like buying a suite of furniture or a Mars bar.
Insurance is a very detailed contract, and it's what we in the law call a contract of utmost good faith, uberrima fides, is the Latin. And what that means is that if you take on insurance, and it is found later on, when you make a claim perhaps, that part of the statement of facts that set up the insurance was wrong, then the insurance company can say, you are in breach of your policy, therefore we're not going to pay out. And the classic is this, particularly with travel insurance.
If you have had health incidents before, you've got a heart condition or you've had a heart murmur, something that didn't amount to anything, but you got treatment on heart arrhythmia. If you fail to tell the insurer about some health condition that you have had, and it doesn't need to be anything terribly serious, but it could be a wee bit of heart arrhythmia or just an episode.
Angela: High blood pressure or something like that.
Austin: And you find out, or they find out after the accident, when you had a heart attack on holiday, that you had this before. They might very well say, well, you weren't truthful about your medical history, and therefore we're not supporting this claim. So with insurance, I know it's easy to buy it online. Be very careful that either the policy is not dependent on your medical or health history, or that if it is, that you provide a full and accurate medical health history. I cannot stress this enough. And it applies not just to an accident abroad, but an accident anywhere, if you have medical cover for anything, or indeed, again, coming back to your car insurance, if you haven't told the insurers about points that you got, or a bump that you were in, or indeed a medical condition, then they may say that your insurance is invalid for that accident.
So abroad, be very sure that you are insured. But one other thing to say about car accidents, where if you are struck or injured or suffer loss or injury as a result of an uninsured driver hitting you or being in a crash, then there is a scheme through, funnily enough, the Motor Insurance Bureau's uninsured driver scheme, where the Motor Insurance Bureau is a kind of amalgam of all the insurance companies. The industry have this scheme whereby you can make a claim against the Motor Insurance Bureau and it will be treated as a normal claim. So you can get full compensation from that and they have the right, if they choose to, to go against the individual who was uninsured. That person may not have any money, so it's a paper exercise. But it's just important as a kind of adjunct that I say, if you're in an accident and the word comes through that the other driver doesn't have insurance, don't forget about it.
See a solicitor because solicitors do know about the uninsured driver scheme and you can check online.
Angela: You can do something about it.
Austin: Yeah, a solicitor will see you through that.
Angela: And one final thing I've just remembered, and that's quite often come up. Someone has some sort of injury in the hairdressers, you know, and their scalp has been burned or that kind of thing. How would you go about claiming on that?
Well, same scenario, the hairdressers should have insurance.
Austin: Yes. Anybody that knows me knows that I've very rarely been to hairdressers for a great many years. But I'll talk in theory.
No, it's absolutely right. Anybody carrying out a process and it could be a tattooist or a piercer, or somebody who is serving you in a shop.
Angela: Because they do ask you to sign things now when you go and get any treatments, you know.
Austin: As a consumer, you cannot sign away your rights not to be harmed. By all means, the hairdresser can give a warning or have a set of terms and conditions, but they cannot be unfair terms and conditions. And injuring you with chemicals or with implements really falls out with any escape of liability clause in a set of terms and conditions or a contract.
So if they do that, then again, evidence immediately, take. photographs, go and see either a doctor or make sure that you see somebody else who sees the state of your scalp, so that you can make sure that it is clear and provable that it was this hairdresser. Because the hairdresser might say, oh no, it wasn't me. Out of panic, they may say, it must have been like that before, but it wasn't me because my chemicals are safe.
And just not be honest about it and not be cooperative about it. I would like to think that, nine hairdressers out of ten would say, I'm really sorry. My insurance will pay for this.
Let's get things together and report it and whatnot. But if they don't, then what you need to do is immediately start the ball rolling for your claim by way of retaining evidence. And that can be photographic evidence.
It can be a doctor's report. You might get an emergency appointment with a doctor saying, look, I need my scalp to be treated because it's come out in this. And that doctor's evidence will be entirely competent evidence if it comes to a claim.
For that kind of thing, if it is painful, but resolves itself quite quickly, then it won't be a massive claim. It might be in the hundreds of pounds. It might stray into four figures.
If it causes you not to be able to work, then we talked about loss of earnings. That may come into it. But that is most certainly a claim in that situation, because you can't be contributory negligent.
You're sitting there with a gown on and somebody is plastering your head with this poison, and it's entirely their fault. And indeed, they have a professional responsibility. It's not as if they said, oh, I didn't know what I was doing.
You've gone and relied on their professional ability, and therefore, you are entitled to compensation if they fail to live up to that professional responsibility. And one other thing to say, all professionals, by and large, have a responsibility to their clients or customers. Doctors do, lawyers do.
If you go and see a lawyer and they get it wrong when they shouldn't have got it wrong and you lose out as a result, then lawyers are all insured and have also a law society compensation scheme. Doctors are heavily insured and protected, so that if they cut off the wrong leg, then there is a very well-known and tried and trusted path to getting compensation from those who represent those doctors. Surveyors are the same, architects, you name it.
Any professional person is the same as a commercial operation. They have a duty to their customers and clients, and if they fail in that duty and the customer or client loses out, then very often there is a claim.
Angela: So to sum up, if someone is unlucky enough to have an accident, what would your best advice be when considering if they should make a claim?
Angela: Whatever kind of claim it may be, and whether the person knows they have a claim or isn't sure, or just thinks I might have a claim, go and see a solicitor, somebody who is expert in assessing, triaging, you might say if it was doctors, your claim. And it may be that you don't have a claim, but you've done the right thing by going to take advice. And most solicitors will give an initial interview, initial consultation without charge.
We certainly will. And that allows you to move away from the thing, either saying, right, I didn't have a claim, it was an accident, but legally, I can't proceed, but at least I know that and I can move on. Or saying, the solicitor says, I may very well have a claim, subject to evidence, etc.
So, I can now sit back and maybe with my family, make the decision, am I going to go forward with this? Will I take on this additional stress? Because it's a matter of injustice, but I've lost out.
I've lost money and I've had pain and suffering. So legally and morally and injustice, I am entitled to recompense.
Angela: Okay. Thanks very much.
Austin: My pleasure.
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